Common use of Responsibility of BNYM Clause in Contracts

Responsibility of BNYM. (a) BNYM shall be under no duty hereunder to take any action on behalf of a Fund except as specifically set forth herein or as may be specifically agreed to by BNYM and the Fund in writing. BNYM shall be obligated to exercise due care and diligence in the performance of its duties hereunder (and the services set forth in the Service Level Agreements) and to act in good faith in performing services provided for under this Agreement. BNYM shall be liable only for any damages, costs or expenses arising out of BNYM’s failure to perform its duties under this Agreement to the extent such damages arise out of BNYM’s willful misfeasance, willful misconduct, bad faith, gross negligence or reckless disregard of such duties (“Standard of Care”). (b) Notwithstanding anything in this Agreement to the contrary, (i) BNYM shall not be liable for losses, delays, failure, errors, interruption or loss of data occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation acts of God; action or inaction of civil or military authority; public enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance by a third party caused by any of the foregoing, provided that BNYM has used reasonable efforts to minimize the impact of any of the foregoing on its ability to fully perform its obligations hereunder; and (ii) BNYM shall not be under any duty or obligation to inquire into and shall not be liable for the validity or invalidity, authority or lack thereof, or truthfulness or accuracy or lack thereof, of any instruction, direction, notice, instrument or other information which BNYM reasonably believes to be genuine. (c) Notwithstanding anything in this Agreement (whether contained anywhere in Sections 13-15 or otherwise) to the contrary, each Fund hereby acknowledges and agrees that (i) BNYM, in the course of providing tax-related services or calculating and reporting portfolio performance hereunder, may rely upon BNYM’s good faith interpretation of tax positions or its good faith interpretation of relevant circumstances (as reasonably determined by BNYM) in providing such tax services and in determining methods of calculating portfolio performance to be used, so long as they are reasonable and are subject to review by the Fund’s tax advisor, and that (ii) BNYM shall not be liable for losses or damages of any kind associated with such reliance except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (d) Notwithstanding anything in this Agreement to the contrary, without limiting anything in the immediately preceding sentence, each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any tax filings with which BNYM has assisted in any way except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (e) Notwithstanding anything in this Agreement to the contrary, neither BNYM nor its affiliates shall be liable for any consequential, special or indirect losses or damages, whether or not the likelihood of such losses or damages was known by BNYM or its affiliates. (f) Each party shall use commercially reasonable efforts (including indemnity payments) to mitigate damages for which the other party may become responsible. (g) Notwithstanding anything in this Agreement to the contrary, BNYM shall have no liability either for any error or omission of any of its predecessors as servicer on behalf of a Fund or for any failure to discover such error or omission. (h) Each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any Fund or investor taxes, assessments, duties and other governmental charges, including any interest or penalty with respect thereto (“Taxes”), or the withholding or reporting, or non-reporting of, such Taxes, except as otherwise specified in sub-sections (x) or (xii) under Item 1 and sub-section (xiii) under Item 2 to Appendix B to the Agreement.

Responsibility of BNYM. (a) BNYM shall be under no duty hereunder to take any action hereunder on behalf of a the Fund except as specifically set forth herein or as may be specifically agreed to by BNYM and the Fund in writinga written amendment hereto. BNYM shall be obligated to exercise due customary care and diligence in the performance of its duties hereunder (and the services set forth in the Service Level Agreements) and to act in good faith in performing services provided for under this Agreement. BNYM shall be liable only for any damages, costs or expenses damages arising out of BNYM’s failure to perform its duties under this Agreement to the extent such damages arise out of BNYM’s willful misfeasance, willful misconduct, bad faith, gross negligence or reckless disregard of such duties (“Standard of Care”)duties. (b) Notwithstanding anything in Without limiting the generality of the foregoing or of any other provision of this Agreement to the contraryAgreement, (i) BNYM shall not be liable for losseslosses beyond its control, delaysincluding without limitation (subject to Section 11), failure, errors, interruption delays or errors or loss of data occurring directly or indirectly by reason of circumstances beyond its reasonable BNYM’s control, including without limitation acts of God; action or inaction of civil or military authority; public enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance by a third party caused by any of the foregoing, provided that BNYM has used reasonable efforts to minimize acted in accordance with the impact of any of the foregoing on standard set forth in Section 14(a) above and has otherwise fulfilled its ability to fully perform its obligations hereunderobligation under this Agreement; and (ii) BNYM shall not be under any duty or obligation to inquire into and shall not be liable for the validity or invalidity, invalidity or authority or lack thereof, or truthfulness or accuracy or lack thereof, thereof of any instructionOral Instruction or Written Instruction, direction, notice, instrument notice or other information instrument which conforms to the applicable requirements of this Agreement, and which BNYM reasonably believes to be genuine. (c) Notwithstanding anything in this Agreement (whether contained anywhere in Sections 13-15 or otherwise) to the contrary, each Fund hereby acknowledges and agrees that (i) BNYM, in the course of providing tax-related services or calculating and reporting portfolio performance hereunder, may rely upon BNYM’s good faith interpretation of tax positions or its good faith interpretation of relevant circumstances (as reasonably determined by BNYM) in providing such tax services and in determining methods of calculating portfolio performance to be used, so long as they are reasonable and are subject to review by the Fund’s tax advisor, and that (ii) BNYM shall not be liable for losses or damages of any kind associated with such reliance except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (d) Notwithstanding anything in this Agreement to the contrary, without limiting anything in the immediately preceding sentence, each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any tax filings with which BNYM has assisted in any way except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (e) Notwithstanding anything in this Agreement to the contrary, neither BNYM party nor its affiliates shall be liable for any consequential, punitive, special or indirect losses or damages, whether or not the likelihood of such losses or damages was known by BNYM the party or its affiliatesaffiliates and (ii) excluding fees owed by the Fund under this Agreement for services rendered by BNYM, a party’s cumulative liability for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including but not limited to those arising out of or related to this Agreement) and regardless of the form of action or legal theory shall not exceed $100,000 plus reasonable attorney’s fees. (fd) Each party shall use commercially reasonable efforts (including indemnity payments) have a duty to mitigate damages for which the other party may become responsible. (ge) Notwithstanding anything in The provisions of this Agreement to the contrary, BNYM Section 14 shall have no liability either for any error or omission survive termination of any of its predecessors as servicer on behalf of a Fund or for any failure to discover such error or omission. (h) Each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any Fund or investor taxes, assessments, duties and other governmental charges, including any interest or penalty with respect thereto (“Taxes”), or the withholding or reporting, or non-reporting of, such Taxes, except as otherwise specified in sub-sections (x) or (xii) under Item 1 and sub-section (xiii) under Item 2 to Appendix B to the this Agreement.

Responsibility of BNYM. (a) BNYM shall be under no duty hereunder to take any action on behalf of a the Fund or any Portfolio except as necessary to fulfill its duties and obligations as specifically set forth herein or as may be specifically agreed to by BNYM and the Fund in writing. BNYM shall be obligated to exercise due care and diligence in the performance of its duties hereunder (and the services set forth in the Service Level Agreements) and to act in good faith and to use its best efforts, within reasonable limits, in performing services provided for under this Agreement. BNYM shall be liable only for any damages, costs or expenses agrees to indemnify and hold harmless the Fund from Losses arising out of BNYM’s failure to perform its duties under this Agreement to the extent such damages arise out of BNYM’s willful misfeasance, willful misconduct, bad faith, gross negligence or reckless disregard of such duties (“Standard of Care”)duties. (b) Notwithstanding anything in Without limiting the generality of the foregoing or of any other provision of this Agreement to the contraryAgreement, (i) BNYM shall not be liable for losses, delays, failure, errors, interruption or loss of data occurring directly or indirectly by reason of circumstances losses beyond its reasonable control, including without limitation acts of God; action or inaction of civil or military authority; public enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance by a third party caused by any of the foregoing, provided that BNYM has used reasonable efforts to minimize acted in accordance with the impact standard of any of the foregoing on its ability to fully perform its obligations hereundercare set forth above; and (ii) BNYM shall not be under any duty or obligation to inquire into and shall not be liable for (A) the validity or invalidity, invalidity or authority or lack thereof, or truthfulness or accuracy or lack thereof, thereof of any instructionOral Instruction or Written Instruction, direction, notice, instrument notice or other information instrument which conforms to the applicable requirements of this Agreement and which BNYM reasonably believes to be genuine; or (B) subject to Section 10, delays or errors or loss of data occurring by reason of circumstances beyond BNYM’s control, including acts of civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply. (c) Notwithstanding anything in this Agreement (whether contained anywhere in Sections 13-15 or otherwise) to the contrary, each Fund hereby acknowledges and agrees that (i) BNYM, in the course of providing tax-related services or calculating and reporting portfolio performance hereunder, may rely upon BNYM’s good faith interpretation of tax positions or its good faith interpretation of relevant circumstances (as reasonably determined by BNYM) in providing such tax services and in determining methods of calculating portfolio performance to be used, so long as they are reasonable and are subject to review by the Fund’s tax advisor, and that (ii) BNYM shall not be liable for losses or damages of any kind associated with such reliance except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (d) Notwithstanding anything in this Agreement to the contrary, without limiting anything in the immediately preceding sentence, each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any tax filings with which BNYM has assisted in any way except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (e) Notwithstanding anything in this Agreement to the contrary, neither BNYM nor its affiliates shall be liable to the Fund for any consequential, special or indirect losses or damagesdamages which the Fund may incur or suffer by or as a consequence of BNYM’s or its affiliates’ performance of the services provided hereunder, whether or not the likelihood of such losses or damages was known by BNYM or its affiliates. (f) Each party shall use commercially reasonable efforts (including indemnity payments) to mitigate damages for which the other party may become responsible. (g) Notwithstanding anything in this Agreement to the contrary, BNYM shall have no liability either for any error or omission of any of its predecessors as servicer on behalf of a Fund or for any failure to discover such error or omission. (h) Each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any Fund or investor taxes, assessments, duties and other governmental charges, including any interest or penalty with respect thereto (“Taxes”), or the withholding or reporting, or non-reporting of, such Taxes, except as otherwise specified in sub-sections (x) or (xii) under Item 1 and sub-section (xiii) under Item 2 to Appendix B to the Agreement.

Responsibility of BNYM. (a) BNYM shall be under no duty hereunder to take any action on behalf of a the Fund or any Portfolio except as necessary to fulfill its duties and obligations as specifically set forth herein or as may be specifically agreed to by BNYM and the Fund in writing. BNYM shall be obligated to exercise due care and diligence in the performance of its duties hereunder (and the services set forth in the Service Level Agreements) and to act in good faith and to use its best efforts, within reasonable limits, in performing services provided for under this Agreement. BNYM shall be liable only for any damagesagrees to indemnify, costs or expenses defend and hold harmless the Fund from Losses arising out of BNYM’s failure to perform its duties under this Agreement to the extent such damages arise out of BNYM’s willful misfeasance, willful misconduct, bad faith, gross negligence or reckless disregard of such duties (“Standard of Care”)duties. (b) Notwithstanding anything in Without limiting the generality of the foregoing or of any other provision of this Agreement to the contraryAgreement, (i) BNYM shall not be liable for losses, delays, failure, errors, interruption or loss of data occurring directly or indirectly by reason of circumstances losses beyond its reasonable control, including without limitation acts of God; action or inaction of civil or military authority; public enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance by a third party caused by any of the foregoing, provided that BNYM has used reasonable efforts to minimize acted in accordance with the impact standard of any of the foregoing on its ability to fully perform its obligations hereundercare set forth above; and (ii) BNYM shall not be under any duty or obligation to inquire into and shall not be liable for (A) the validity or invalidity, invalidity or authority or lack thereof, or truthfulness or accuracy or lack thereof, thereof of any instructionOral Instruction or Written Instruction, direction, notice, instrument notice or other information instrument which conforms to the applicable requirements of this Agreement, and which BNYM reasonably believes to be genuine; or (B) subject to Section 10, delays or errors or loss of data occurring by reason of circumstances beyond BNYM’s control, including acts of civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply. (c) Notwithstanding anything in this Agreement (whether contained anywhere in Sections 13-15 or otherwise) to the contrary, each Fund hereby acknowledges and agrees that (i) BNYM, in the course of providing tax-related services or calculating and reporting portfolio performance hereunder, may rely upon BNYM’s good faith interpretation of tax positions or its good faith interpretation of relevant circumstances (as reasonably determined by BNYM) in providing such tax services and in determining methods of calculating portfolio performance to be used, so long as they are reasonable and are subject to review by the Fund’s tax advisor, and that (ii) BNYM shall not be liable for losses or damages of any kind associated with such reliance except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (d) Notwithstanding anything in this Agreement to the contrary, without limiting anything in the immediately preceding sentence, each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any tax filings with which BNYM has assisted in any way except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (e) Notwithstanding anything in this Agreement to the contrary, neither BNYM nor its affiliates shall be liable to the Fund for any consequential, special or indirect losses or damagesdamages which the Fund may incur or suffer by or as a consequence of BNYM’s or its affiliates’ performance of the services provided hereunder, whether or not the likelihood of such losses or damages was known by BNYM or its affiliates. (f) Each party shall use commercially reasonable efforts (including indemnity payments) to mitigate damages for which the other party may become responsible. (g) Notwithstanding anything in this Agreement to the contrary, BNYM shall have no liability either for any error or omission of any of its predecessors as servicer on behalf of a Fund or for any failure to discover such error or omission. (h) Each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any Fund or investor taxes, assessments, duties and other governmental charges, including any interest or penalty with respect thereto (“Taxes”), or the withholding or reporting, or non-reporting of, such Taxes, except as otherwise specified in sub-sections (x) or (xii) under Item 1 and sub-section (xiii) under Item 2 to Appendix B to the Agreement.

Responsibility of BNYM. (a) BNYM shall be under no duty hereunder to take any action on behalf of a the Fund except as specifically set forth herein or as may be specifically agreed to by BNYM and the Fund in writinga written amendment hereto. BNYM shall be obligated to exercise due care and diligence in the performance of its duties hereunder (and the services set forth in the Service Level Agreements) and to act in good faith in performing services provided for under this Agreement. Subject to the terms of this Section 12, BNYM shall be liable only for any damages, costs or expenses arising out of BNYM’s failure to perform its duties under this Agreement damages only to the extent such damages arise out of BNYM’s willful misfeasance, willful 's intentional misconduct, bad faith, gross negligence or reckless disregard of such duties (“"Standard of Care”"). (b) Notwithstanding anything in this Agreement to the contrary, (i) BNYM shall not be liable for losses, delays, failure, errors, interruption or loss of data occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation acts of God; action or inaction of civil or military authority; public enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance by a third party caused by any of the foregoing, provided that BNYM has used reasonable efforts to minimize the impact of any of the foregoing on its ability to fully perform its obligations hereunderparty; and (ii) BNYM shall not be under any duty or obligation to inquire into and shall not be liable for the validity or invalidity, authority or lack thereof, or truthfulness or accuracy or lack thereof, of any instruction, direction, notice, instrument or other information which BNYM reasonably believes to be genuine. (c) Notwithstanding anything in this Agreement (whether contained anywhere in Sections 1314-15 16 or otherwise) to the contrary, each Fund hereby acknowledges and agrees that (i) BNYM, in the course of providing tax-related services or calculating and reporting portfolio performance hereunder, may rely upon BNYM’s good faith 's interpretation of tax positions or its good faith interpretation of relevant circumstances (as reasonably determined by BNYM) in providing such tax services and in determining methods of calculating portfolio performance to be used, so long as they are reasonable and are subject to review by the Fund’s tax advisor, and that (ii) BNYM shall not be liable for losses or damages of any kind associated with such reliance except to the extent such loss or damage arises out of is due to BNYM’s gross negligence, reckless disregard 's breach of its duties, willful misconduct or will misfeasanceStandard of Care hereunder. (d) Notwithstanding anything in this Agreement to the contrary, without limiting anything in the immediately preceding sentence, each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any tax filings with which BNYM has assisted in any way except to the extent such loss or damage arises out of is due to BNYM’s gross negligence, reckless disregard 's breach of its duties, willful misconduct or will misfeasanceStandard of Care hereunder. (e) The Fund acknowledges that it may be considered a U.S. withholding agent and/or may required to file information or other tax returns under the U.S. Internal Revenue Code and related regulations ("IRC and Regulations"). The Fund agrees that it or its designated agents are, and will continue to be, in compliance with all withholding and reporting required by the IRC and Regulations. Therefore, unless otherwise specified herein or in a separate written agreement, neither BNYM nor its affiliates shall be responsible for withholding or depositing taxes, nor will it/they be responsible for any related tax filings or information reporting, including but not limited to Forms 1099, 945, 1042S, 1042, 1065, 1065 K-1, 8804, 8805, 1120 or 1120F. (f) Notwithstanding anything in this Agreement to the contrary, neither BNYM party nor its affiliates shall be liable for any consequential, incidental, exemplary, punitive, special or indirect losses or damages, whether or not the likelihood of such losses or damages was known by BNYM such party or its affiliates. (fg) Each party shall use commercially reasonable efforts (including indemnity payments) have a duty to mitigate damages for which the other party may become responsible. (g) Notwithstanding anything in this Agreement to the contrary, BNYM shall have no liability either for any error or omission of any of its predecessors as servicer on behalf of a Fund or for any failure to discover such error or omission. (h) Each Fund hereby acknowledges and agrees that BNYM The provisions of this Section 12 shall not be liable for any losses or damages survive termination of any kind associated with any Fund or investor taxes, assessments, duties and other governmental charges, including any interest or penalty with respect thereto (“Taxes”), or the withholding or reporting, or non-reporting of, such Taxes, except as otherwise specified in sub-sections (x) or (xii) under Item 1 and sub-section (xiii) under Item 2 to Appendix B to the this Agreement.

Responsibility of BNYM. (a) BNYM shall be under no duty hereunder to take any action on behalf of a Highland or the Fund except as necessary to fulfill its duties and obligations as specifically set forth herein or as may be specifically agreed to by BNYM and the Fund in writing. BNYM shall be obligated to exercise due care and diligence in the performance of its duties hereunder (and the services set forth in the Service Level Agreements) and to act in good faith and to use its best efforts, within reasonable limits, in performing services provided for under this Agreement. BNYM shall be liable only for any damages, costs or expenses agrees to indemnify and hold harmless Highland from Losses arising out of BNYM’s failure to perform its duties under this Agreement to the extent such damages arise out of BNYM’s willful misfeasance, willful misconduct, bad faith, gross negligence or reckless disregard of such duties (“Standard of Care”)duties. (b) Notwithstanding anything in Without limiting the generality of the foregoing or of any other provision of this Agreement to the contraryAgreement, (i) BNYM shall not be liable for losses, delays, failure, errors, interruption or loss of data occurring directly or indirectly by reason of circumstances losses beyond its reasonable control, including without limitation acts of God; action or inaction of civil or military authority; public enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion; interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance by a third party caused by any of the foregoing, provided that BNYM has used reasonable efforts to minimize acted in accordance with the impact standard of any of the foregoing on its ability to fully perform its obligations hereundercare set forth above; and (ii) BNYM shall not be under any duty or obligation to inquire into and shall not be liable for (A) the validity or invalidity, invalidity or authority or lack thereof, or truthfulness or accuracy or lack thereof, thereof of any instructionOral Instruction or Written Instruction, direction, notice, instrument notice or other information instrument which conforms to the applicable requirements of this Agreement and which BNYM reasonably believes to be genuine; or (B) subject to Section 10, delays or errors or loss of data occurring by reason of circumstances beyond BNYM’s control, including acts of civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply. (c) Notwithstanding anything in this Agreement (whether contained anywhere in Sections 13-15 or otherwise) to the contrary, each Fund hereby acknowledges and agrees that (i) BNYM, in the course of providing tax-related services or calculating and reporting portfolio performance hereunder, may rely upon BNYM’s good faith interpretation of tax positions or its good faith interpretation of relevant circumstances (as reasonably determined by BNYM) in providing such tax services and in determining methods of calculating portfolio performance to be used, so long as they are reasonable and are subject to review by the Fund’s tax advisor, and that (ii) BNYM shall not be liable for losses or damages of any kind associated with such reliance except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (d) Notwithstanding anything in this Agreement to the contrary, without limiting anything in the immediately preceding sentence, each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any tax filings with which BNYM has assisted in any way except to the extent such loss or damage arises out of BNYM’s gross negligence, reckless disregard of its duties, willful misconduct or will misfeasance. (e) Notwithstanding anything in this Agreement to the contrary, neither BNYM nor its affiliates shall be liable to Highland for any consequential, special or indirect losses or damagesdamages which Highland may incur or suffer by or as a consequence of BNYM’s or its affiliates’ performance of the services provided hereunder, whether or not the likelihood of such losses or damages was known by BNYM or its affiliates. (f) Each party shall use commercially reasonable efforts (including indemnity payments) to mitigate damages for which the other party may become responsible. (g) Notwithstanding anything in this Agreement to the contrary, BNYM shall have no liability either for any error or omission of any of its predecessors as servicer on behalf of a Fund or for any failure to discover such error or omission. (h) Each Fund hereby acknowledges and agrees that BNYM shall not be liable for any losses or damages of any kind associated with any Fund or investor taxes, assessments, duties and other governmental charges, including any interest or penalty with respect thereto (“Taxes”), or the withholding or reporting, or non-reporting of, such Taxes, except as otherwise specified in sub-sections (x) or (xii) under Item 1 and sub-section (xiii) under Item 2 to Appendix B to the Agreement.